Grounds for Modification of Custody & Visitation Orders

March 22nd, 2013

So, you have a permanent child custody arrangement and you want it changed. Sometimes permanent child custody arrangements can be changed, even if they say “Final,” and even if the parties signed an agreement saying they wouldn’t change it. See Family Code § 3022. What are some reasons that would justify changing a permanent custody or visitation order?

Some Factors Related to Modifications of Custody:

Facilitation or Frustration of Visitation: Is the other parent denying you rightful contact with your child or failing to follow the court order?

Employment: Have there been any changes in your employment or the other parent’s employment? Are the children always in daycare or the care of relatives? Are you more available to spend time with the children? Has a change in your employment increased the amount of time you can devote to your children?

Geographic Distance: Do you now live closer to the children and can see them more often than you previously could? Would more frequent custodial changes be more feasible because of a geographical change?

School Performance: How is your child performing in school? Maintain active in any parent/teacher conferences and investigate your child’s performance by interviewing his or her teachers. Is the child’s homework getting done? Do the teachers notice any unusual behavior? Try and stay objective as best you can.

Home Environment: What kind of environment is the other parent providing? Are there any problems with child abuse, drugs, smoking, or any other conditions in the home? Does the other parent and his or her new companion behave appropriately when the child is present? Does the other parent’s companion have a history of criminal activity or abuse? Does your child receive proper supervision? Does the child have proper sleeping arrangements? Are other children from a subsequent relationship living in the same household?

Discipline and Punishment: Is corporal punishment being inflicted upon your child? Is the child being punished by someone other than the parent?

Fitness of the Ex-spouse as a Parent: Has the other parent committed any crimes? Does the other parent have any substance abuse issues? Does the other parent have other impairments that would make effective parenting difficult?

Substantial Change of Circumstances:

The law has become increasingly murky in this area. It used to be that in order to modify custody arrangements, the moving party must show that there was a “substantial change of circumstances.” Now, no one knows exactly what that means, but some substantial changes have been changes in employment (losing a job), moving from one city to another, one parent’s criminal activity, and major changes in the child’s conduct such as grades in school. Recent changes, most flowing from the case Montenegro v. Diaz (2001) 26 Cal.App.4th 249, have made it unclear exactly when a substantial change is needed and when its not. A substantial change of circumstances is generally required to modify a “Final” court order for custody. See Montenegro. Custody modifications that simply make adjustments in time, modifications of temporary order, and modifications of visitation generally don’t require a showing of a substantial change in circumstances.

If you are looking to modify your current custody arrangement, it is best to work with an attorney near you to discuss whether or not there are grounds for a modification and how that modification can be carried out in the court system.

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